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Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill: Stage 1
That brings us to the first item on the agenda. The bill is a consolidation measure and three members of this committee are on the committee that will consider how the bill consolidates various acts relating to fishing. As usual, the Subordinate Legislation Committee's duty is to consider whether the subordinate legislation provisions in the bill are in accordance with the Parliament's standing orders and with the principles of good governance, which I mentioned earlier.
The bill contains many cross-references and it is not certain whether they knit happily together. I presume that the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee will consider that matter.
Yes, it will, but the Subordinate Legislation Committee could also usefully raise the point.
Do you mean the fact that section 4 contains a cross-reference to section 33, which also contains provision for specifying baits and lures? I did not want to get into the nasty bits of fishing, but it appears that, in consolidating different pieces of legislation that stretch back over a considerable time, a straightforward knitting exercise has not taken place.
Hence the term "consolidation".
The Scottish ministers should have a power to adjust the definition of rod and line. [Interruption.] Let the record show that Mr Fitzpatrick helpfully demonstrated how a rod and line is used in fishing for or taking salmon.
Has Gordon Jackson declared his interest in salmon fishing?
What interest?
He likes it with lemon and a wee touch of black pepper.
He is murdering sashimi.
We will refer the matter of the interaction between section 4 and sections 33 and 38(5)(b) to the Executive because we are not happy with it. We will ask the Executive for comment and reconsideration of those sections.
I take it that you were playing Pictionary at new year, convener. My demonstration was for those listening on the radio.
Imagine being up so early in the morning.
Who said that I was up?
Oh well, right enough.
Not necessarily. If we are talking about a straightforward consolidation of existing law, the consolidation committee should not consider that matter.
That cannot be altered, but it would be possible to say during discussion that in other circumstances we would want stricter procedures to be applied. That might put down a marker for future consideration.
It is important to remember what a consolidation does. It is, by definition, a restatement, not a consideration of legislation from scratch. That which is restated might include subordinate legislation provisions for which, if they were in a brand new bill, we would decide whether the procedure should be positive or negative. I do not see how this committee can consider that for this bill, because not even the consolidation committee can consider that—we cannot change policy. We have a different remit for this bill and I am worried that we are straying from it.
I do not want us to do that, but I want to say to the Executive that our procedures should not perpetuate the ambiguous drafting of subordinate legislation, which might happen.
The consolidation is not meant to perpetuate ambiguity, but to some extent all that this kind of bill can do is to perpetuate. It can clear up obvious ambiguities and nonsense, but it can only perpetuate. You would probably agree with that, convener.
I have been thinking about that.
Normally, anything that does not only perpetuate would have to go before Parliament. The consolidation committee is a procedure for doing things without parliamentary scrutiny.
Yes, but if we notice during the passage of the consolidation measure that aspects of it are less than well drafted, or have become anomalous because of practices and procedures that we are building up, should we not state that?
Without wanting to be over-technical, it depends on what we mean by anomalous. Deciding whether something should be subject to the negative or the affirmative procedure is not any of our business in this context. If parts of the bill were anomalous because they were mutually contradictory or did not make sense, that would be the kind of thing that consolidated legislation is meant to change and there would be nothing wrong in our noting that. It is a fine line to draw.
I appreciate that. I am trying to find an easy, one-step way of ensuring that, as well as being consolidated the legislation is improved without changing policy intention. Perhaps it is impossible to square that circle.
It is. The legislation is not meant to "improve" in the way that you use the word.
I just want to make the legislation more workable and understandable to those affected by it.
It would be easy to cross the line.
I shall not go to the wall on that, but if you feel the same suspicion or unease as you go through bill, perhaps there will be a role for us to comment.
It is quite controversial. In fact, there have been disputes about what haaf-netting is over centuries. Haaf nets are permitted only on the Solway and nowhere else. The fishermen of the Solway jealously guard their right to fish with haaf nets. However, because it is exclusive to the Solway, there has been much litigation over the years as to what haaf-netting is. Therefore, the right to define haaf-netting is a very sensitive issue.
Recommendation 9 at paragraph 67 of the Scottish Law Commission report is that this method of fishing should be recognised as lawful, but that the Scottish Ministers should have a power to regulate the construction and use of haaf nets.
Well, it is if you use haaf nets.
I have a point of information. How can haaf nets be altered? Are they made bigger? Is the mesh a different size? Is that what we are talking about?
I presume that it is the size of the net.
As I understand it, haaf nets are built on a wooden construction, the style and size of which could obviously be altered.
As this has a material effect, we must question whether the matter should be left to subordinate legislation.
I can see why there might be a need to amend regulations about the size and scale of haaf nets in the future. However, the point could be made that it should be subject to the affirmative procedure rather than the negative.
That would be consistent with what we have done before. Brian Fitzpatrick, do you agree?
Yes.
We will mention to the Executive that the committee would prefer to see the matter dealt with under the affirmative procedure.
The Executive's notes do not comment on the subsection. It appears to create a new power and goes wider than the existing legislation.
As the Executive, in its memorandum, has not given the committee any notice of its intentions, we must ask the Executive its intentions before we jump to conclusions. As we know, the Executive is a fine body of men and women.
Some of them are.
Murdo Fraser will also be examining the matter in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee.
Yes, with the leave of the committee.
They tell me that you are outvoted anyway.
That is just because Jackson is there.
This is another matter where, from this committee's point of view, we might be more inclined to think that the affirmative procedure would be more appropriate, but we will simply notify the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee of our opinion. Are we agreed?
Section 33 deals with regulations as to baits and lures for salmon fishing. Again, we do not have the Executive's thoughts on this. There might be a difficulty with the interaction of this provision with section 4(3), and there is also a question as to whether the provision is properly consolidated. Again, that issue is one for Murdo Fraser's committee, but there might be a question for this committee as to whether the power should properly be left to subordinate legislation that is subject to no parliamentary procedure. Does anyone have any thoughts?
We should ask the Executive to clarify its intentions.
There is also a bit of a drafting problem about references to designation orders and so on because they do not appear in some of the other associated documents. We could also bring that point to the Executive's attention.
Section 34 relates to salmon fishery districts. There is some doubt about what the Executive means by "existing salmon fishery district".
Yes. We should ask the Executive what it means by that phrase.
Section 34(4) reproduces section 1(4) of the Salmon Act 1986 and confers powers on the Scottish ministers to make orders ancillary to designation orders. We need clarification on that.
It is just consolidation anyway, so we should not bother with it.
As I said, there has to be consultation; we are okay about that.
Section 37(3) simply reproduces the existing provisions, so we do not need to comment.
The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee can pick the matter up.
There is some dubiety about the drafting of subsection (4)(b). I suggest that we ask the Executive to clarify its intentions.
The original provision provides for the power to be exercised by regulation rather than by order, as is provided for now. Murdo, you will consider that on your committee too.
Yes, I believe that we will.
That is fine, but we will also ask the Executive for clarification.
It is a straight lift from the 1986 act, and I do not think that we should comment on it.
We like straight lifts.
Again, that is a straight piece of consolidation. This is not territory that we want to go into any further.
We should point out that it would have been nice to have this power subject to the affirmative procedure—but we cannae do that.
I do not think that we could make a change in that regard.
We know that we cannot do that, but I will comment on the matter in passing. We should simply say that, in line with our general approach, we would have preferred it if the procedure under section 43(8) had been affirmative.
That is the John Farquhar Munro clause.
The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Bill Committee will seek expert advice when it considers the consolidation.
We have the expert on the committee.
That is fine then. I know that we are straying into policy areas, but the section is a bit restrictive.
We cannot comment, because the power is a pure consolidation of existing provisions.
Section 72(2) is on commencement. I believe that the section might be wrong. Section 72(2) of the bill provides that Scottish ministers may appoint the day on which the act comes into force, other than section 72, which the Executive claims will commence by operation of law two months after royal assent. Seemingly, it is normal for consolidating acts to come into force two months after royal assent, but it is also usual to specify such a commencement date in the act itself. The way in which the section has been drafted suggests that the bill might come into force not two months after royal assent, but on royal assent. We must draw that to the Executive's attention.
There should be a commencement date in the act.
Yes, I think so.
I am sure that we will.
Local Government in Scotland Bill:<br />as amended at Stage 2
We raised six concerns with the Executive at stage 2 and the Executive has said that it agrees with us on four of the points that we made. I do not know whether the Executive felt that it had to stand on our dignity, but it has stuck to a couple of its points on section 25G, which is on capital expenditure limits. The section places a duty on local authorities to manage their capital expenditure, requiring them in so doing to comply with regulations made by Scottish ministers. It is an important power and we asked for further justification of the negative procedure proposed.
Section 25H is on the imposition of capital expenditure limits. We asked why the Executive had not referred to the new power in its memorandum. The Executive said, "Well we are quite glad that you noticed that we hadn't told you why." However, the Executive feels that it really is none of our business, because the power is not in the form of a power to make subordinate legislation. Are we happy with that response? The Executive is saying that the power will rarely, if ever, be used; but we are nitpickers and we say that if it can be used the Executive should get it right.
Why is the power not expressed as a power to make subordinate legislation?
Why not? Because the Executive did not make it like that.
All right.
The Executive says that the power would be used only in exceptional and extreme circumstances.
That is why the Executive did not embody the power in a statutory instrument.
The power would also be used where the need for intervention was immediate. That is why the Executive cannot hang around producing an SSI; it would have to get on and do something.
Yes. However, we are talking about money and about curtailing the power—
Surely the reality is that if the power were used controversially it would be raised in the Parliament.
That is what the Executive is saying.
That is bound to happen. It is not possible to envisage a situation in which an Executive would use the power against local government.
No, but the Subordinate Legislation Committee is bound to say that such powers should be expressed in the correct way.
Even if the power was to be used against local government and a complaint was to be made, it would become a public political issue. If we are not careful, SSIs could go through on the nod because they are often administrative in nature. Exercising the power in this case would be such a big political issue that it could not be done in a corner. There is no doubt that a huge row would result in the Parliament if it were to be exercised. In an odd way, the power is such a huge thing to exercise that it hardly needs an SSI to go before the Parliament.
I see the argument.
If we did not have the Executive coming before the Parliament with SSIs—
We are making political judgments.
If the Executive wanted to do things to regulate shellfish, for example, it could do so without using an SSI and naebody would notice. SSIs are needed so that at least somebody looks at what the Executive is doing. I repeat that this power could never be exercised in a corner.
Are we just deciding that it could not?
Well, we decide on certain things, such as that night follows day.
We are not meant to decide anything on this committee.
It could not possibly be done without a huge political row. The convener could contact the Parliament or the lead committee. When is the bill to be introduced?
Stage 3 is tomorrow.
Yes, it is tomorrow.
As part of our general letter to the Parliament and the lead committee, we should say that we have, yet again, had to produce a report on a very important piece of legislation overnight. We are anything but pleased with that. It does not lead to good governance.
Absolutely. I have no problem with that. However, there is nothing to stop the convener from standing up in the stage 3 debate and saying that there is an argument—Why is the convener looking at me like that?
Because I love you, Gordon. No, it is because every time I stand up to say something as convener of the Subordinate Legislation Committee everybody else goes out for a piece of shortbread. I exclude the loyal members of the committee from that remark—they stay.
There is nothing to stop the convener saying that the power is such that it should be made as an SSI. I personally do not care if it is made as an SSI, because I do not think that the power could be slipped through on the fly. If the power were to be used, it would be such a big deal that a huge row would ensue.
Aye, but governments can ride out big rows, which is why we need to take a belt-and-braces approach. I return to the point that Murdo Fraser made about what would happen if the power had to be used quickly.
On balance, for the reasons that I have just given, I am happy with the power not being made as an SSI, but the Parliament should at least have it drawn to its attention that the power is not being expressed as a power to make subordinate legislation.
I will do it just for you, Gordon.
Presumably, if there was a big fuss the Executive could withdraw its imposition of the limit. However, the Executive may be in a hurry to get the thing done. If it cannot impose the limit until it has gone through a whole lot of scrutiny and big debates, it would take longer for it to do its Executive bit.
Big debates can be truncated, but they can still be held. The clerk and I will confer on the matter to ensure that I do not let you down, that I say the right things tomorrow and that I give a proper flavour of the consideration of the committee.